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No. 135053
| Grievance Administrator, Attorney Grievance |
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Robert L. Agacinski |
| Commission, State of Michigan, |
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Petitioner-Appellee, |
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(Original Action) |
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Patricia Cooper, |
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Donald D. Campbell |
| Respondent-Appellant. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Petitioner-Appellee's Brief in Opposition to Application for Leave to Appeal>>
Petitioner-Appellee's Supplemental Brief>>
Respondent-Appellant's Application for Leave to Appeal>>
Respondent-Appellant's Supplemental Brief>>
American Academy of Matrimonial Lawyers' Amicus Curiae Brief>>
(Majority of the) Family Law Section of the State Bar of Michigan's Amicus Curiae Brief>>
Varnum, Riddering, Schmidt & Howlett LLP and John W. Allen's Amici Curiae Brief>>
Background
Kaisra Sheikh hired attorney Patricia Cooper to represent her in a divorce action. Sheikh signed a retainer agreement stating that she would pay Cooper “a MINIMUM FEE OF $4,000.00” and that Cooper’s hourly rate was $195. The retainer agreement also provided that the client “understands that NO portion of the MINIMUM FEE referred to above is REFUNDABLE, to the client, under any circumstances.” After Cooper invested approximately 6.4 hours in the case, Sheikh terminated the attorney-client relationship, saying that she and her husband had reconciled. Sheikh requested a refund of the unused portion of the $4,000 minimum fee. Cooper concluded that she was not obligated to refund any portion of the fee, but nevertheless decided to return half of the remaining balance, or $1,385.75, to Sheikh. Sheikh objected to the partial reimbursement, and complained to the Attorney Grievance Commission, which then served Cooper with a request for investigation and filed a formal complaint against her. The complaint alleged that Cooper charged and collected an illegal or clearly excessive fee, and failed to refund the unearned portion of fees paid by Sheikh, in violation of MCR 9.104(A)(1)-(4), and MRPC 1.5(a), 1.15(b), 1.16(d), and 8.4(a)-(c). After a hearing, an Attorney Discipline Board panel dismissed the complaint against Cooper, finding that she did not act unethically. The Grievance Administrator then filed a request for review with the Attorney Discipline Board, arguing that non-refundable fees are unethical. The Attorney Discipline Board agreed, concluding that the $4,000 minimum fee was actually an “advance fee,” and that non-refundable advance fee provisions are unethical. By failing to return the fee, Cooper violated Michigan Rules of Professional Conduct 1.16(d) and 1.15(b), the ADB said. But, while the ADB ordered Cooper to pay Sheikh the remaining $1,385.75, it declined to impose discipline against her, noting that the law and ethics opinions on the issue were not clear, and that Cooper had attempted to resolve the matter with her client. Cooper appeals.
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